ICE Guidance on Foreign Students Rescinded

On July 6, 2020, United States Immigration and Customs Enforcement (ICE) issued a new guidance that would have forced international students to leave the U.S. if they did not participate in in-person instruction during the fall 2020 semester.  

The ICE guidance modified temporary exemptions issued in March because of the COVID-19 pandemic. Those provisions allowed nonimmigrant students to take more online courses than normally permitted by federal regulation.  Under the new policy, foreign students enrolled in schools and/or programs that are fully online for the fall 2020 semester would have been forced to “depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status.”

The directive received immediate opposition from the scientific and higher education communities. 

The Natural Science Collections Alliance endorsed a statement calling for the policy to be rescinded immediately.  The statement argued, in part: “While all sectors of the United States economy, including higher education institutions, are working to identify responsible strategies for invigorating the economy during an on-going global health crisis, this policy punishes students and educational institutions for behaving responsibly. As we sadly continue to see in communities across the country, premature and poorly planned re-openings are contributing to rapid increases in COVID-19, and ultimately infusing additional risk and uncertainty into the economy. To effectively mandate that universities across the nation, regardless of local needs and institutional capacity, provide and then require students to participate in in-person instruction this fall is irresponsible and dangerous.”

On July 8, Harvard University and Massachusetts Institute of Technology filed lawsuits against the new guidance on the grounds that the Administration had failed to follow appropriate federal procedures under the Administrative Procedure Act in crafting the policy.  More than 200 other universities, including Columbia, Stanford, Duke, and Yale signed court briefs supporting the lawsuit.  Another group of 20 universities in the Western United States filed a lawsuit on July 13 against the order.  The directive was also facing a lawsuit from 19 state Attorneys General.

On July 14, the Administration announced that the controversial policy facing multiple lawsuits would be dropped.  The temporary exemptions issued at the beginning of the pandemic allowing international students taking online courses to reside in the United States remain in effect.